passes with the house as an easement, and a servitude upon the adjacent lot.1

31. The case of Thayer v. Payne 2 was also cited in the same case. But it seems to rest rather upon the doctrine, that what is necessary to enjoy a thing granted passes by a grant of the principal thing, than that of an implied easement, growing out of the principal estate, having been used in a particular manner by the grantor. The subject of inquiry in that case was a drain connected with two tenements, one of which had been granted to the defendant by the plaintiff. The drain led from the defendant's tenement through the plaintiff's, and was held to pass, as an easement, with the defendant's tenement, although not granted in terms, because the jury found it necessary to the enjoyment of the same. Had it been otherwise, though existing at the time of the conveyance, it would not have passed.3

32. The general subject may be further illustrated by the case of Hinchliffe v. Kinnoul, where there had been a long lease of land, during which houses had been erected thereon by the lessee or his assigns, and a sub-lessee of one of the tenements had made use of a passage-way along the side of it, through which a "coalshoot" had been used by him for supplying the house with coal, and water-pipes had been laid along this passage-way for supplying the house with water, and in making repairs to the house this passage-way had been used as a means of access thereto. A few years before the expiration of the general lease of the premises, the reversioner of the entire estate made a reversionary lease of the tenement above mentioned, in which he described it with great exactness, and added, "together with all and [* 52] * singular the appurtenances unto the said piece or parcel of ground, messuage, or tenement, erections, buildings, and premises belonging or anywise appertaining." The question was, if the right of passage, &c., passed under this lease, inasmuch as they never could have become appurtenant as against the reversioner, and he only granted such estate as he had. It was held, that, being in existence, and necessary to the enjoyment of the leased

1 Alexander v. Boghel, 4 La. 312.

2 Thayer v. Payne, 2 Cush. 327. See also Brakely v. Sharp, 1 Stockt. 9, 17; Johnson v. Jordan, 2 Met. 234, 240; Ferguson v. Witsell, 5 Rich. 280; Pyer v. Carter, 1 Hurlst. & N. 916.

premises, they passed there with as necessarily incident thereto, although not specially named in the lease. The court, however, waived the question whether these were properly appurtenant to the thing granted, and held that it was enough that the lease was made by a party who was entitled to the reversion both of the house and the soil of the passage-way, and had a right to grant or continue the existence of such right at the time the lease was to come into operation and effect, and the words of the lease would admit of that construction.1

33. The case of Pheysey v. Vicary may also be referred to as a further illustration of what passes by way of easement upon the severance of one or more tenements. In that case the owner of two dwelling-houses, standing near each other, devised one to the plaintiff, and the other, " and the appurtenances thereto belonging," to the defendant. There was a wrought track from the street along in front of the defendant's house continued on in front of the plaintiff's, which, passing around a circular plat, returned into the street over the same track as that by which it commenced; and this track had been used as the means of access to the two houses, although there was a means of access from the street to each of the houses from the rear of the land on [53] which the houses stood. The question was, whether the plaintiff had a right to use this wrought track as a means of access to his house. It was claimed, not as a way of necessity, but as appurtenant to the estate devised to him by reason of having been thus used.

It was contended that the way in this case came within the principle of a destination du père de famille of the civil law, which Pardessus defines, "La disposition ou l'arrangement que le propriétaire de plusieurs fonds a fait pour leur usage respectif;" and which, by the Code Napoleon, "has the effect of writing in regard of continual and apparent servitudes." The Code of Louisiana declares such use as the owner has intentionally established on a particular part of his property in favor of another part, to be equal to a title with respect to perpetual and apparent servitudes thereon. But the court, Parke, B., held that "the way

1 Hinchliffe v. Kinnoul, 5 Bing. N. C. 1. See post, chap. 5, sect. 1, pl. 7, where this case is again referred to, upon the question of the effect of unity of title of two estates upon an existing easement. See also Osborn v. Wise, 7 Carr. & P. 751.

can only pass in one of two modes, viz., either under the word ' appurtenances' in the will, or as of necessity. A right of way to one of two houses, though of necessity, may be extinguished by unity of ownership or possession, though, when either house is regranted singly, it would pass by implication as necessarily incident to that grant." That all that passed in this case, under the term appurtenant, was a way of necessity, which does not come under the class of continuous or permanent easements, but was one to be exercised only from time to time, and only while the necessity continued. "If it is necessary to the safety of a house that water should flow down a drain, the right of watercourse through it is reserved by implication in every grant of the house." 1

But if the drain of one house be so badly constructed as

* to be a nuisance to the house through which it passes, [* 54] and the owner of both lease the latter, retaining the former, he will be liable for suffering it to remain so, though in the same condition as when leased. The law does not, in such case, reserve to him anything more than a reasonable use of such drain.2

34. In determining whether a right like that of a drain or other easement shall pass, by implication, with premises under a grant, though not mentioned, much stress is laid upon its being of an apparent and continuous character, and in one case the objection was taken, that, when the purchaser of one of two tenements acquired his title, he did not know of the existence of the drain, the same being under ground. But the court held that he must have known that the tenement claiming the drain must have some drainage, and he was therefore bound to examine and ascertain its existence, and that no actually "apparent signs" were necessary to charge him with notice of the same.3

But still, in order that an easement should thus pass, by implication, under the grant of an estate, it must be one that is apparent as well as continuous, and such as is indicated by the

1 See ante, sect. 1, pl. 21; Pheysey v. Vicary, 16 Mees. & W. 484; White v. Leeson, 5 Hurlst. & N. 53; Pardessus, Traité des Servitudes, 430, 431; Glave v. Harding, 3 Hurlst. & N., Am. ed., 937; Code Nap., art. 692; La. Civ. Code, art. 763; ante, p. 44.

condition of the premises at the time of the grant. And where there were skeletons of buildings standing together, with openings in them, but apparently uncertain whether for doors or windows, a right of a particular way as belonging to the premises would not pass as one of its appurtenances by a conveyance of one of the houses in that state.1

35. This subject is more fully examined in Johnson v. Jordan,

already cited. That was also a case of a drain from one tene[55] ment through another, which had been used by the * owner

of both tenements when they belonged to one and the same person. So long as he owned the two, he could convey the one with or without the incumbrance or advantage of the drain, as he might elect, depending, of course, upon his intent as expressed in his deed. In the absence of anything relative to the drain in a deed of one of the parcels, the question was, what construction did the law give to such deed in respect to such drain? An important circumstance appeared in the examination of the case, which was, that the slope of the ground was such as not to require that the drain from the one tenement should run through the other, but admitted of constructing a new drain for the upper tenement, at no disproportionate expense, without interfering with the lower one, although the drain in its present form was a convenient one, and had been in use before the conveyance. The court held that such rights of water-way or drain as would be easements under the ownership of the two estates by different persons, and were necessary to the enjoyment of the thing granted, and had been previously used with the estate, would pass as appurtenant to the same. If, therefore, one owning two tenements have a drain from the one over or through the other, and he sell the first with its appurtenances, it would pass the right of drain as being de facto annexed as an appurtenance. But if he were to convey the lower tenement, making no mention of the drain in his deed, he would not be considered as reserving a right of drain from his remaining tenement through the one granted. In that case, however, the owners of the several tenements acquired their titles to the same by simultaneous conveyances from the original owner, and it was held that they were to be considered in the light of tenants in common, who had made partition of their

1 Glave v. Harding, 3 Hurlst. & N., Am. ed., 937, 945.

estates, when each party takes his estate with the rights, privileges, and incidents inherently attached to it, rather than as grantors and grantees. It was held, that, as no mention was made of the drain in the deed, and as it was not neces- [* 56] sary to the enjoyment of the upper tenement, the right to use it did not pass by the conveyance.'

*

36. Thus where the owner of a parcel of land made a ditch therein, whereby the upper part of it was drained, and subsequently conveyed this part of it with a part of the ditch, retaining the part with the ditch through which the part so conveyed was drained, it was held that he could not afterwards stop the ditch so as to prevent the water being drained from the vendee's land.2

So where one owning two estates near each other, through one of which flowed a stream of water, leased the other parcel, and authorized the tenant to divert the water from the one on to and through the other, and while in that condition sold the latter with all watercourses and appurtenances, it was held that he was not, after such sale, at liberty to stop the water from flowing through the granted premises, and thereby restore the stream to its original state.3

It is stated in Jenkin's Centuries: "A way is extinguished by unity of possession, and is revivable afterwards, upon a descent to two daughters, where the land through which, &c., is allotted to one; and the other land, to which the way belonged, is allotted to the other sister: and this allotment, without specialty to have the way anciently used, is sufficient to revive it." 4

One owning lands upon both sides of a stream raised a dike along one bank to prevent the water from overflowing the land on that side, the effect of which was to throw more water than had before been done upon the opposite bank. After his death his estate was divided among his heirs, one heir taking the land upon one side, and another that upon the other side of the stream. The

1 Johnson v. Jordan, 2 Met. 234. See Nichols v. Luce, 24 Pick. 102; Goddard v. Dakin, 10 Met. 94; New Ipswich W. L. Factory v. Batchelder, 3 N. H. 190; Nicholas v. Chamberlain, Cro. Jac. 121; ante, p. *44.

145.

2 Shaw v. Etheridge, 3 Jones (N. C.), 300.

Wardle v. Brocklehurst, 1 E. & Ellis, 1058; s. c. 29 L. J. N. 8. Q. B.

• Jenk, case 37. See also James v. Plant, 4 Adolph. & E. 749.